Advance care planning – a difficult path to tread?

Advance care planning takes a variety of forms and is without doubt an important tool for patients and clinicians alike. It can ensure that an individual patient’s wishes are front and centre in any treatment decision but also provide clarity to the treating teams and a layer of protection from criticism or complaint, for instance from family members who were not in agreement with the decisions of their loved one.

Advance care planning appeared to take on heightened importance at the start of the pandemic as concerns about resources were raised. There was an increase in people wanting to set out their wishes should they require treatment and clinicians and providers were urged to support robust care planning so that anticipated need and supply could be appropriately measured and matched.

However, advance care planning has also received a large amount of negative attention. Stories abound about do not attempt cardio-pulmonary resuscitation decisions seemingly unilaterally imposed on the basis of age or disability. Equally, there has been much coverage about the emotional impact of advance care planning from patients and their families who say that early discussions about potential ceilings of care were “too much” in an already unbearable situation.

In legal practice, we have certainly seen an increase in queries about advance care planning in relation to both implementation and challenge.

This begs the question, has advance care planning gone too far? Has its purpose been distorted such that its usefulness and its power have been diminished? Are there troubling implications for life after the pandemic when decisions made in the context of the emergency period may be held to apply in very different circumstances? From aspects of the recent coverage there appears to be very real concern that advance care planning could do more harm than good.

Going back to basics, it is clear that advance care planning can take many forms whether it be patient-led (by way of an advance decision, advance statement or appointed attorney) or for the most part clinically-driven (by way of a DNACPR or ceiling of care).

All of these options come with their particular procedural requirements but the essential factor in all is the communication about the plan between patient and clinician. A patient’s advance decision to refuse certain treatment that is not seen by a clinician will not inform treatment options. A clinician’s opinion that CPR would not be in a particular patient’s best interests must be discussed with a patient or their loved ones in order for a DNACPR decision to be lawful (unless they refuse or there is a real risk of harm). Advance care planning done unilaterally, by either the clinician or the patient, can never be effective and lawful.

It is that essential factor that will save advance care planning. Advance care planning is, and must be, patient specific. It must be about the patient and, most importantly, with the patient. In that way, advance care planning can do everything with which it is tasked, simultaneously acting as a protector of patients’ rights and wishes, a shield for clinicians against complaint or claim and an essential tool for providers in ensuring a comprehensive service. There is no doubt that it can be a difficult path to tread, especially with the additional challenges of social distancing and isolation, but it is a path strewn with advantages for all involved.

Helen Claridge is a partner at Hempsons